In 2016 the Ninth Circuit Court of Appeals ruled in Wilson v. Lynch (9th Cir. Case No. 14-15799) that medical marijuana cardholders are prohibited from purchasing firearms based on federal regulations. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an Open Letter to gun dealers in 2011 stating that, “If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person.”

Wilson, a Nevada resident with a state-issued medical marijuana card, went to buy a firearm in her small town just days after the ATF letter was received by her local gun dealer. The owner knew that she was a medical marijuana card holder and refused to sell her a firearm based on the ATF regulation. She filed suit alleging that the ATF rule violated her First, Second, and Fifth Amendment rights. The case was dismissed by lower courts (twice) and on her second appeal, the Ninth Circuit affirmed the lower court’s dismissal of the case.

Wilson’s Second Amendment rights were not violated because the letter and ATF regulation does not outlaw possession, only the purchase of firearms while in possession of a medical marijuana card. State issued medical marijuana cards are not federally recognized, and users of the Schedule 1 controlled substance (marijuana) are classified federally as “unlawful drug users.”

The government says that drug users, specifically marijuana users, are more likely to commit acts of violence. Is there empirical research to support this finding? No, but the government referenced a discussion of drug use and violence in a prior case (U.S. v. Carter, 750 F.3d 462 (4th Cir. 2014) that provides a “reasonable relationship and common sense” between marijuana use and violence. This, the court concludes, supports the state’s interest in controlling who may legally buy a firearm.

Wait a minute! Are marijuana users really more likely to resort to violence? I thought they were more likely to resort to brownies and Cheetos and other munchie ending foods! But violence? Among the medical M-card holding crew? Sounds like a stretch to me, and that is likely one reason I do not sit on any circuit (or other) court.

Wilson’s other constitutional arguments went nowhere. she argued that she does not use marijuana, but has the card for political purposes to support the legalization of marijuana, which is an act of free speech. The court held that the government’s firearm purchase restriction does not violate her First Amendment right. She has many other methods to vocalize her support for the legalization of marijuana and purchasing a firearm is not a “communicative” method. So too the fifth amendment claim – there is no constitutional right to hold the card and buy a gun simultaneously.

To exercise her Second Amendment rights Wilson could forfeit her card and lawfully purchase a firearm, or she could have purchased a firearm before obtaining the card and be in possession of a firearm. The federal government’s interest in regulating firearm sales, according to the 9th, outweighs her right to purchase a gun.

So there you have it. If you have a medical marijuana card, you can be prohibited from purchasing a gun. If you have a gun already, apparently not an issue. Sometimes the laws make sense and other times… not so much!

]]>https://www.idahocriminaldefenselaw.com/2018/08/firearms/that-medical-marijuana-card-can-prevent-you-from-buying-a-gun/feed/3Stand Your Ground – when, where and who?https://www.idahocriminaldefenselaw.com/2018/07/firearms/stand-your-ground-when-where-and-who/
https://www.idahocriminaldefenselaw.com/2018/07/firearms/stand-your-ground-when-where-and-who/#respondWed, 18 Jul 2018 15:52:00 +0000https://www.idahocriminaldefenselaw.com/?p=1507Continue Reading]]>Among the changes to Idaho law taking effect on July 1, 2018, is an important clarification of when you can and cannot use deadly force to defend yourself, others or perhaps, your “habitation.” The newest version of Idaho Code 18-4009 lays out the places and people you have a right to defend with deadly force. Previously Idaho focused on one’s home as a place to protect with deadly force. The law now spells out your right to use deadly force – if necessary – to your place of work and your occupied vehicle.

Arguably, if someone walks up to your vehicle holding a handgun and pointing it at you while you’re sitting in 5 o’clock traffic, demonstrating that he or she is about to use it, you may be entitled to use deadly force to defend yourself and the vehicle’s occupants. Wasn’t this the law before the change? I think so and the cases in Idaho support the idea behind self-defense generally: if you are in fear for your life, and under imminent attack, you may use reasonable force to defend yourself and others. The only issue is whether your use of deadly force was reasonable.

A successful self-defense claim is measured by what a reasonable person in that same or similar situation would have done. The fact that someone is angrily walking up to your vehicle is not, by itself, a reason to use deadly force. Nor has the law changed to permit the use of deadly force under every situation. Before deadly force could be used, there must be some act that demonstrates an intent on the part of an attacker to commit a felony or do great bodily harm.

In a case I defended ten years ago, my client was in a logging truck when another truck driver blocked his way on a remote mountain road. The driver walked toward my client with a chain in his hand and yelled he was going to “settle the score” once and for all. They had been in “disagreement” over whether my client owed him some money. Snarling, screaming and running toward my client, who sat in his truck with a pistol on the passenger seat, the other driver climbed up on the running boards and hit him through the open window. My client grabbed the gun and fired one shot – successfully defending his own life. He was charged with murder and faced a trial for his use of deadly force. When I argued the case to the jury I told them that I would never have waited for the other driver to climb up on the running boards, and I would have shot him sooner. The jury apparently agreed, and it found my client “NOT GUILTY.”

Still, a trial is a trial. It is still an ordeal, emotionally and financially. The fact that the law seemingly permits something does not make it easy to assert that right!

Does “Stand Your Ground” means that if you are standing on a sidewalk and someone is running in your general direction with what appears to be a weapon, you can justifiably kill them? Absolutely not. The law requires more. In particular, the law requires that the person running your way represents an imminent threat of great bodily harm or is in about to commit a felony. Even then, your actions will be judged by what a reasonable person in your shoes would do.

So – is this really a change? In some respects, it is. It adds your vehicle and place of employment as “places” that can be protected. Still, don’t get the impression the law invites us to simply shoot first and ask questions later. Self-defense still requires that you believe the use of deadly force is necessary and that a reasonable person would have agreed.

]]>https://www.idahocriminaldefenselaw.com/2018/07/firearms/stand-your-ground-when-where-and-who/feed/0Idaho Self Defense Law Clarified – Stand Your Groundhttps://www.idahocriminaldefenselaw.com/2018/04/firearms/idaho-self-defense-law-clarified-stand-your-ground/
https://www.idahocriminaldefenselaw.com/2018/04/firearms/idaho-self-defense-law-clarified-stand-your-ground/#commentsWed, 25 Apr 2018 22:34:37 +0000https://www.idahocriminaldefenselaw.com/?p=1505Continue Reading]]>Idaho’s law protecting a person acting in self-defense gets clarified by the passage of Senate Bill 1313 – which goes into effect July 1st. The real impact is to consolidate and codify existing law to clearly protect the inherent right of a person to defend themselves and others. Idaho law permits a law-abiding citizen to stand their ground and protect themselves and families anywhere they have a right to be. SB 1313 also protects the right of a person to defend against intruders who enter the defender’s home or business unlawfully or by force, without having to demonstrate that he or she reasonably feared the intruder was about to cause death or great bodily harm. The entry by unlawful force establishes that the defender’s fear of serious injury was reasonable, so the use of self-defense was likewise reasonable.

There is a lot of debate about restrictions on gun ownership and use across the land, but Idaho remains committed to the notion that self-defense, including the use of firearms and deadly force, is a reasonable response to an unlawful attack on you or your family. The law doesn’t really change anything, but it clarifies the right to stand your ground in the face of an intrusion or attack on you or your family. The law had the backing of law enforcement and prosecutors.